United States District Court, M.D. Florida, Orlando Division
B. SMITH, United States Magistrate Judge
case comes before the Court without a hearing on Defendant
T-Mobile's Motion to Compel (Doc. 51). Plaintiff, Local
Access, LLC, has filed a response in opposition to the motion
(Doc. 55), and the dispute is due to be resolved.
alleges that it provides telephone exchange and other
services to Defendant (Doc. 1, ¶¶ 31-35). Plaintiff
further alleges that since January 1, 2013, Defendant has
failed and refused to pay for Plaintiff's services
(Id., ¶ 37). Defendant denies liability and
asserts 18 affirmative defenses (Doc. 20).
September 12, 2017, Defendant served requests for admissions,
requests for production, and interrogatories on Plaintiff
(Doc. 51 at 1). Plaintiff did not respond to this discovery
and on October 18, 2017, counsel for Defendant sent a letter
to Plaintiff's counsel stating that the requests for
admission were deemed admitted, all objections to the
discovery were deemed waived, and that Defendant still
expected to receive substantive responses to its requests for
production and interrogatories (Doc. 52-4). Plaintiff's
counsel did not respond so on October 30, 2017,
Defendant's counsel emailed a copy of the letter to
Plaintiff's counsel (Doc. 52, ¶ 5). The next day,
counsel for Defendant phoned and left a voicemail asking
Plaintiff's counsel to talk by phone about the overdue
discovery responses and other matters (Id., ¶
6). Counsel for Plaintiff did not respond and on November 2
the instant motion was filed (Id.).
may be asked “to admit, for purposes of the pending
action only, the truth of the matters within the scope of
Rule 26(b)(1) relating to: (A) facts, the application of law
to fact, or opinions about either; and (B) the genuineness of
any described documents.” Fed.R.Civ.P. 36(a)(1). A
party has 30 within to respond to requests for admission.
Fed.R.Civ.P. 36(a)(3). If a party fails to respond within 30
days after being served with the requests, they are deemed
admitted. Id. When a request for admissions is
admitted, the matter “is conclusively established
unless the court, on motion, permits the admission to be
withdrawn or amended.” Fed.R.Civ.P. 36(b).
does not deny that it has failed to respond to
Defendant's requests for admissions (Doc. 55). But it
argues, the motion to compel “has been rendered
moot” based upon the documents it has produced and the
deposition testimony it has provided (Id., at 2-4).
Plaintiff also argues that its customer list (which Defendant
has requested), is confidential, proprietary, and a trade
secret (Id., at 3-4). Plaintiff has not supported
this conclusory assertion with facts, nor has it cited any
legal authority stating that confidential information is not
discoverable. Lastly, in its memorandum Plaintiff refers to
its own motion for protective order (Id., at 5).
That motion does not appear on the docket and the Court does
not know what Plaintiff is talking about.
does not recognize document productions or deposition
testimony as permissible alternative responses to a request
for admissions. Plaintiff did not seek an enlargement of time
to respond to the requests; it did not answer or object to
the requests; and, Plaintiff has not sought leave of Court to
withdraw or amend the admissions. Consequently,
Defendant's requests for admissions numbered 1-6 are
deemed admitted for purposes of this action only.
Bailey v. City of Daytona Beach Shores, 286 F.R.D.
625, 627 (M.D. Fla. Oct. 23, 2012), this Court aligned itself
with other courts which have found that if a party fails to
respond to discovery within 30 days after service, its
objections may be deemed waived. See Enron Corp. Sav.
Plan v. Hewitt Assoc., L.L.C., 258 F.R.D. 149, 156 (S.D.
Tex. 2009); Applied Sys., Inc. v. N. Ins. Co. of New
York, No. 97 C 1565, 1997 WL 639235, at *2 (N.D. Ill.
Oct. 7, 1997); Brenford Envtl. Sys., L.P. v. Pipeliners
of Puerto Rico, Inc., 269 F.R.D. 143 (D.P.R. 2010);
Bank of Mongolia v. M & P Glob. Fin. Serv.,
Inc., 258 F.R.D. 514, 518 (S.D. Fla. 2009); Siddiq
v. Saudi Arabian Airlines Corp., No.
6:11-cv-69-Orl-19GJK, 2011 WL 6936485, at *3 (M.D. Fla. Dec.
has not explained its failure to respond in writing to
Defendant's discovery (Doc. 55). Its argument that all of
the discovery is now mooted by the documents and deposition
testimony it has provided is not persuasive. Plaintiff has
not stated when those document productions or depositions
occurred, what exactly was produced or testified to, or how
or why the documents and testimony constitute a full and
complete response to the discovery. Plaintiff has also not
requested leave of Court to make out-of-time objections.
record supports a finding that Plaintiff has flagrantly
violated its discovery obligations and any objections it
might otherwise have validly asserted in response to
Defendant's discovery are deemed waived. Consequently,
the motion to compel is GRANTED. Within
10 days from the rendition of this Order,
Plaintiff shall provide full and complete written responses
to Defendant's requests for production and
court grants a motion to compel, or if the discovery is
provided after the motion is filed, the moving party is
entitled to recover its reasonable expenses in making the
motion, including attorney's fees, unless “(i) the
movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action; (ii)
the opposing party's nondisclosure, response, or
objection was substantially justified; or (iii) other
circumstances make an award of expenses unjust.”
Fed.R.Civ.P. 37(a)(5)(A). None of the exceptions apply. Now,
the Court finds that Plaintiff is liable to Defendant for
reasonable attorney's fees and costs incurred in
connection with the motion to compel. Within 14 days
from the rendition of this Order Defendant shall
make application for its fees and costs. Plaintiff will then
have 14 days to respond. The parties may avoid this process
by notifying the Court within the next 14 days that they have
resolved the issue between themselves.